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Order Invalidating Fla. Stat. §766.1065
FYI – On September 25, 2013, a U.S. District Judge in the Northern District of Florida issued the attached Order in Murphy v. Dulay, M.D., et al., wherein he held Florida Statute §766.1065, which went into effect on July 1, 2013, is preempted by federal laws designed to prevent the improper disclosure of patients’ health information. The ruling by Judge Robert Hinkle came less than four months after Gov. Rick Scott signed the law and is a blow to groups such as the Florida Medical Association (FMA), which lobbied heavily this spring for changes in the medical-malpractice system.
The case focused on part of the law that allows ex parte communications with treating physicians in medical-malpractice cases. In such communications, defense attorneys representing a doctor accused of malpractice can get personal health information about the patient involved in the case without the patient’s attorney being present.
Opponents of the law argued that it violates the federal Health Insurance Portability and Accountability Act (HIPAA) which seeks to prevent disclosure of personal medical information, except in certain circumstances.
“The issue is whether a state, by statute, may require a patient, as a condition precedent to pursuing a medical-negligence claim, to sign an authorization allowing the potential defendant — and the potential defendant’s attorneys, insurers, and adjusters — to conduct ex parte interviews with the patient’s other healthcare providers,’’ Hinkle wrote. “Because federal law prohibits ex parte interviews of this kind with exceptions not applicable here, this order holds the statute invalid.”
Undoubtedly, the State of Florida, which intervened as a defendant to assert its interest in defending the challenged statute, will appeal this order. In the meantime, there will likely be a number of different interpretations of Florida Statute §766.1065 by various trial judges throughout the state. However, until an appellate court address the constitutionality of this statute, it remains in full force and effect.